Citation Nr: 0713564
Decision Date: 05/08/07 Archive Date: 05/17/07
DOCKET NO. 04-25 010A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to Dependency and Indemnity Compensation
(DIC) under the provisions of 38 U.S.C.A. § 1318.
3. Entitlement to death pension benefits.
4. Entitlement to accrued benefits.
WITNESSES AT HEARING ON APPEAL
Ex-Wife of Veteran; Daughter of Veteran
ATTORNEY FOR THE BOARD
Nathaniel J. Doan, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1969 to
January 1972. The veteran died on March [redacted], 2003. This
appeal was brought by an ex-spouse of the veteran on behalf
of a minor child. The record indicates that the child
recently attained the age of 18.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2003 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Petersburg, Florida. In that rating decision, the RO
denied service connection for the cause of the veteran's
death, entitlement to DIC under 38 U.S.C.A. § 1318,
entitlement to death pension benefits, and entitlement to
accrued benefits. The appellant currently lives in Illinois.
She testified before the undersigned Veterans Law Judge at a
Travel Board hearing held in Chicago, Illinois. A transcript
of that hearing has been associated with the claims file.
The Board notes that the appellant was represented by the
American Legion at the Board hearing. The record, however,
does not contain a signed VA Form 21-22, appointing the
American Legion as the appellant's representative.
The instant appeal involves entitlement to death benefits.
The Board notes that entitlement to death benefits based on
the veteran's death are also sought by the veteran's
surviving spouse. The Board finds that there is sufficient
evidence of record to grant service connection for the cause
of the veteran's death. The appeal must be remanded,
however, to enable the RO to comply with contested claim
procedures. The Board is simultaneously issuing a remand in
the appeal by the veteran's surviving spouse.
In addition to the instant appeal from the veteran's ex-
spouse, the veteran's surviving spouse has claimed for
entitlement to service connection for the cause of the
veteran's death and entitlement to DIC under the provisions
of 38 U.S.C.A. § 1318 and these issues are also in appellate
status. All of the claims of these two appeals from separate
claimants relate to entitlement to benefits based on the
death of the veteran and all of the claims are dependent upon
whether the surviving spouse or minor child has precedent
entitlement to a benefit and/or would be affected by the
granting of DIC benefits to another person. Under these
circumstances and since the contested claims procedures must
be complied with, all of the claims must be remanded to
comply with procedural due process of law.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
The RO must comply with contested claim procedures and
provide the appellant with copies of the pertinent
regulations, including 38 C.F.R. § 19.100-19.102, 20.500-
20.504, and 20.713. See also M21-1, Part IV, Chapter 5.
The appellant should also be issued the law and regulations
pertinent to the questions of whom is entitled to the granted
death benefits and the exclusiveness of the DIC benefit based
on a service-connected death, including 38 U.S.C.A. §§ 1311,
1313 and 38 C.F.R. § 3.5 . The appellant should also be
issued the pertinent regulations regarding entitlement to
death pension and accrued benefits, including 38 C.F.R. § 3.3
and 3.1000.
In view of the foregoing, the claim is remanded to the RO for
the following development:
1. The appellant should be issued copies of the
pertinent contested claim regulations, including
38 C.F.R. § 19.100-19.102, 20.500-20.504, and
20.713.
2. The appellant should be issued the law and
regulations pertinent to the questions of whom is
entitled to granted benefits and the exclusiveness
of the DIC benefit based on a service-connected
death, including 38 U.S.C.A. §§ 1311, 1313;
38 C.F.R. § 3.5 . The appellant should also be
issued the pertinent regulations regarding
entitlement to death pension and accrued benefits,
including 38 C.F.R. § 3.3 and 3.1000.
3. All other contested claims procedures, as
contained in M21-1, Part IV, Chapter 5, should be
followed, including the issuance of notices and
statements of the case.
The appellant has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
The appellant's appeal must be afforded expeditious
treatment. The law requires that all claims that are
remanded by the Board by the United States Court of Appeals
for Veterans Claims (Court) for additional development or
other appropriate action must be handled in an expeditious
manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp.
2005).
_________________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2005), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of the
appellant's appeal. 38 C.F.R. § 20.1100(b) (2006).